CrowdLaw as a tool for open governance

Originally posted on in GovLab Blog.

On March 13-17, 2018 The GovLab brought together two dozen crowdlaw experts from around the world to collaborate on developing new ways to include more and more diverse opinions and expertise at every stage of the law- and policy-making process. The convening was held at the Rockefeller Foundation’s famed Bellagio Center in Bellagio, Italy. This post is the first in a series of blog posts from the crowdlaw conference participants.

Democracy is whole lot like Bellagio. Throughout the vicissitudes of democratic practice, the highs and lows, democracy remains the best form of governance (of all the ones that have hitherto been tried, to paraphrase Churchill). But democracy is a lot more than voting for public representatives every four or five years. Real democracy is about people’s participation in decision making about matters that affect their daily lives. Participation is the currency we use to enjoy the benefits of democracy. Without participation, we lose democracy.

However, that which does not transform with the changes in the environment is bound to become extinct. This is true for living organisms and ideas alike. Technological advancement is influencing every aspect of our lives, from how we interact with those around us to how we work, how we play, how we perceive the world and events around us. Likewise, technological advancement is transforming entire industries, professions and areas of knowledge. However the one area that seems still unsure about how to respond to change brought about by technological innovation, is the governance field.

I use the term “governance field” as the broad rubric that encompasses fields such as democratic practice, policy formulation and law making. While mobile banking, artificial intelligence (AI)-supported infrastructure design and usage of virtual reality in medical procedures have become standard features of modern life, there is still only minimal uptake of electronic or online voting during national electionsImproving transparency in elections and maintaining the independence of electoral commissions is vital for promoting trust in the electoral system, preventing electoral fraud, and upholding the democr... More, to give one example. While there are hundreds of examples and recorded best practice on how governments are using online and offline mechanisms to promote participation in policy formulation, the incorporation of new technologies into the entire law-making circle (problem identification, options identification, drafting, decision, implementation and review) at local levels of government are few and far in between but there are good examples (that will be elaborated on in subsequent blogs in this series). In some instances, existing legal frameworks have often been slow to respond to swift and sudden technological changes, rendering them – at least in part – unable to fully accommodate the areas they are meant to regulate.

There are strong arguments that technology is not the only (or even preferred) medium for enhancing public participation in law making. However, it is also true that traditional, mostly offline, mechanisms for public participation tend to favour those “in the know” and those that have access to information and resources to enable them to send their positions to legislative authorities or travel to seats of government to engage with lawmakers. The rapid growth of the rates of penetration of mobile phones globally[1], means there are now greater opportunities to enable broad-based participation in law-making processes using technology. In instances of inequality technology can be a great leveler and can have a democratising effect and thus enabling more inclusive lawmaking.

If the governance area of knowledge and practice fails to adopt technological change, might it also fray, wither and become extinct? The concept itself cannot be said to be vulnerable to extinction but different approaches to governance could become irrelevant over time if they are not modernised. I believe that this is the case with the practice of democracy.

Fortunately there are many individuals, organisations and governments that are working together to experiment with how technology can be used to enhance the practice of democracy. These experiments are coming at the right time as the world experiences a sharp decline in public trust of governments. Multi-stakeholder initiatives such the the Open Government PartnershipThe Open Government Partnership (OGP) is a multi-stakeholder initiative focused on improving government transparency, ensuring opportunities for citizen participation in public matters, and strengthen... More (OGP) working with governments, civil society groups and civic tech proponents are creating exciting new platforms that seek to enable deeper and more impactful engagement between the public and their governments on the conduct of public affairs and management of shrinking public resources. Governments across the globe are piloting new forms of engagement and feedback mechanisms to better understand and meet the needs of citizens, be it through online consultations, community score cards or e-services, to name a few.

The group convened at Bellagio by Professor Beth Noveck, head of The Governance Lab considered ways of nurturing a movement that will drive this important work through global project mapping, research into the effectiveness of these initiatives and development of norms and standards for implementing CrowdLaw. According to Prof. Noveck,

“Technology offers the promise of opening how lawmaking bodies work and making lawmakers accountable to the public more than just on Election Day. CrowdLaw offers an alternative to the traditional method of lawmaking, which is typically done by professional staff and politicians working behind closed doors and with little direct input from the people legislationCreating and passing legislation is one of the most effective ways of ensuring open government reforms have long-lasting effects on government practices. Technical specifications: Act of creating or r... affects. Instead, we start from the hypothesis that, designed right, with the aim of improving the quality of outputs, there are opportunities at each stage of the lawmaking process, including problem definition, solution identification, research and drafting, subsequent crafting of implementing regulations, and monitoring of outcomes, to introduce greater expertise into the legislative process efficiently. At the same time, we acknowledge that, designed wrong, without regard for outcomes, engagement may only hamstring decision-making and deepen distrust of government.” [2]

Prof. Noveck’s warning about some of the potential pitfalls of CrowdLaw is important. Implementing CrowdLaw comes at a cost in time, resources and, most importantly, ordinary people’s wishes and expectations. The value proposition for implementing and participating in CrowdLaw initiatives for both governments and the public has to be well articulated and based on evidence from pioneering initiatives.

While the case for the benefits of CrowdLaw for the public is easily made, more work needs to be done to demonstrate how CrowdLaw can strengthen existing public participation processes and how it can help governments graduate up the continuum of public participation by moving from informing, consulting and involving the public to collaboration with, and empowerment of, the public. The position of CrowdLaw within the broader ecosystem of governance-enhancement concepts, for example participatory budgeting and legislative openness, will also require more analysis. CrowdLaw champions will further need to grapple with the question of limitation of access (to information and participation) as a legally recognised provision in public law. While the CrowdLaw ideal is to place the public throughout the vein of legislative process, the contours of the limitations to public participation will need to be articulated and guidelines must be offered to CrowdLaw implementers on the government side.

With 76 Open Government Partnership (OGP) countries and subnational entities (municipal, provincial, state or devolved governments) currently drafting their action plans, OGP is an ideal incubator for CrowdLaw – especially with a view to curating knowledge and early lessons on “how technology can facilitate more participatory lawmaking in cities, and the benefits potential, risks and metrics”, as Prof. Noveck puts it.

There are clear synergies between the intentions of CrowdLaw and OGP’s stated agenda of promoting parliamentary/legislative openness. The CrowdLaw concept presents OGP participating countries and subnational entities with a tool to test the possibilities of innovation in making legislative process more open and collaborative.

It could well be that an idea hatched in a quiet little corner of Lake Como will resound around the world and fundamentally transform law-making processes forever. This is a good thing – perhaps a fundamental shake up is what is needed to restore the public’s faith in democracy and government.

FOOTNOTES:
1 According to the statistics portal, Statista, the global number of mobile phone users  was 4,77 billion users in 2017 and it is forecast to reach 5 billion users in 2019. This is 67% mobile phone penetration. 50% of all mobile phone users currently use smartphones. Data available at https://www.statista.com/statistics/274774/forecast-of-mobile-phone-users-worldwide/

2 Beth Simone Noveck, Director, The Governance Lab, e-mail communication with author, 13 November 2017.